I now
turn to constitutional fixity, the concept that lies at the heart of my story.
This subject is complex—not least because, as Sandy Levinson appropriately writes,
fixity is “chimerical.” So it’s valuable to restate some central points. I
argue that Founding-era Americans did not invent the idea of constitutional
fixity, they reimagined it. Debates during the decade after ratification
brought into focus a new idea of what defined a fixed constitution.

It is
essential to grasp this point because, contrary to what is commonly thought,
there was nothing new—not in 1796, 1787, or 1776—about thinking that a constitution
ought to be fixed. Virtually everybody in the English-speaking world, for over
a century and half, had assumed that their constitutions were fixed and that
this was a good thing. Common law jurists like Sir Edward Coke had claimed that
the English constitution was fixed. So too had leading seventeenth-century
Parliamentarians like John Pym and Henry Parker and radical spokesmen who kept
their dream alive like Algernon Sidney. Meanwhile, colonial Americans—whose own
conception of the British constitution centered on the texts of their colonial
charters—readily assumed that they were subject to a fixed constitution. If
there was one thing that everybody could agree on, it was the fact that
constitutions were fixed. This all might seem counterintuitive. Didn’t
Revolutionary Americans invent the idea of a fixed constitution by choosing to
write their constitutions down? Wasn’t the customary British constitution
obviously unfixed, since it changed through evolving practice? From the
perspective of our distinctive understanding of fixity those queries make
perfect sense, but therein lies the point—from our perspective. And it is precisely that perspective, which marked
such a rupture in the long history of Anglo-American constitutionalism, whose
origins I set out to explain.

Before
that perspective took shape, an older form of constitutional fixity reigned.
And unlike its successor, it was fully compatible with prevalent notions of
constitutional change. Most members of the seventeenth- and eighteenth-century
English-speaking world—from Matthew Hale and William Blackstone to James Otis
and Samuel Adams—assumed that constitutions were fixed but changing. When
constitutions changed—due to evolving practices, common law adjudications, or
constitutional crises—they did not drift away from fixed principles but more
deeply converged on them. Dynamic change produced new constitutional
understandings that simultaneously restored ancient constitutional meanings.
Counterintuitive to us; obvious to them.

After
independence, these habits endured. Americans wrote their new state
constitutions, but those instruments naturally replaced the charters that had
long centered their constitutional existence, so it seemed intuitive that the
deeper constitutional principles those charters had incorporated persisted as
well. Much changed between 1776 and 1787—and plenty of it, as I suggest, was
revolutionary—but many basic constitutional habits endured. In this regard the
federal Constitution was indeed fixed from the beginning—just as the British
constitution, the colonial charters, and the state constitutions had been
before it—but fixed in a way that we no longer easily recognize, and one that
post-ratification debates helped make obsolete.

So what
I chart in my book is not the birth of constitutional fixity itself, but the
origins of a peculiar brand of fixity that made a previous brand of fixity look
like anything but. That new form of constitutional fixity has endured in
powerful ways. By stressing the new Constitution’s textual and archival
character, and thus by circumscribing it in space and time, post-ratification
Americans helped turn fixity and change from allies into antagonists. Ever
since, Americans have largely operated in the space made of this opposition,
opting to see the Constitution either as static and fixed or as dynamic and
changing—as Sandy Levinson celebrates John Marshall for doing in his famous
opinion in McCullough v. Maryland. In
other words, only from the perspective of a new kind of fixity born in the 1790s
did the enduring contest that treats originalism and living constitutionalism
as warring alternatives become intelligible.

With
this account of fixity in mind, I would modify Mark Graber’s suggestive
framework for comprehending when constitutional actors appeal to fixity. In
highlighting the diverse purposes of constitutional argument, Graber is
identifying something real and important, not only in Abraham Lincoln’s and
Thomas Jefferson’s constitutional rhetoric, but in constitutional rhetoric more
generally. That said, even if there is a discernible pattern in how people have
appealed to what we might call fixity, I think it is crucial to recognize that
changes to the idea of fixity have changed how these arguments operate. As
Graber correctly notes, it was common in British constitutionalism to claim
that opponents were violating key provisions of a fixed constitution. But when
those earlier Anglo-Americans turned around and emphasized constitutional open-endedness,
they were not understood to be contradicting themselves.

Additionally,
in narrowing fixity, post-ratification Americans helped draw new distinctions
in the field of constitutional rhetoric. Graber describes the common practice of
constitutional practitioners defending their particular interpretation with
absolute certainty. But, in our culture, not all of these arguments appeal to
constitutional meaning fixed at the Founding. Often, such assertions appeal instead
to certain valued features of the status quo and more recent past—precedent,
doctrine, custom, or longstanding norms. And whereas in the earlier British or
early American state constitutional contexts these appeals would not have
seemed distinct in kind, now they very much are. There is far more to the story
than what happened during the decade following ratification, but my sense is
that reimagining fixity helped remake the field of constitutional rhetoric more
broadly. Even if Graber’s framework is valuable, we still need to appreciate that
not all forms of constitutional fixity were made equal and that the Founding
era significantly altered the practice of appealing to a fixed constitution.

It is
also crucial to note that early congressmen made arguments that complicate
Graber’s dichotomy. While it was perhaps not surprising that Federalists, since
they were trying to legitimize a new constitutional order during ratification, extolled
the virtues of a provisional Constitution, it is surprising that many of them
were no more certain about the Constitution’s meaning the following year when
they debated the removal of executive officers in Congress. Even though the
purpose of constitutional argument had changed, numerous advocates of removal nonetheless
maintained that the Constitution was silent on the question and that it was
their responsibility, as congressmen, to devise a working meaning. No doubt
some defenders of removal came to believe that the right reading of Article II
necessitated vesting removal in the president alone, but what is remarkable is
how many refused to embrace this argument; how many refused to treat the
Constitution as a text with fixed meaning. Before a new kind of fixity reigned
supreme—when, as Levinson so colorfully puts it, “whirl was king”—these
congressmen were adamant that the Constitution had nothing to say about the
issue before them. They displayed an “openness” (again drawing on Levinson) that
confounds our expectations. Perhaps Graber’s observation that constitutional
actors often invoke the rhetoric of constitutional fixity when seeking to
legitimize their positions or constrain the actions of their opponents owes as
much to my historical account as to the general features of constitutional
argument.

Differentiating
between different kinds of fixity also helps us think about the inevitability,
or strong likelihood, of Americans’ brand of constitutionalism—a theme that
both Gerard Magliocca and Christina Mulligan thoughtfully raise. In different
ways, each question how contingent the developments I emphasize might actually have
been.

Magliocca
wonders whether it was not, in fact, inevitable that Americans would have
embraced constitutional fixity as they did. Maybe Americans were destined to
look to their Founding to legitimize their Constitution. Magliocca makes a good
case for why such appeals to fixity were likely unavoidable in the United
States. Lacking the sense of shared identity of other nations, Americans needed
to bind themselves to their Founding moment. I agree that it was almost
certainly inevitable that Americans would have looked to their Founding for
authority, but they might have done so armed with an older notion of constitutional
fixity that drew a less invidious distinction between past and present. There
was nothing new about appealing to the authority of the past, nor doing so in partial,
strategic, and flattened ways (as Alison LaCroix correctly reminds us was what Founding-era
Americans continued doing). So even if Americans in the 1790s (to answer one of
Bernadette Meyler’s questions) did not obsess over the difference between constitutional
drafters and ratifiers, importantly they did narrow the scope of their Founding
in non-necessary ways. Had post-ratification Americans not circumscribed the
Constitution in time and begun treating it as an archival object, appealing to
the Founding could have still resembled the more fluid uses of history that had
long dominated Anglo-American constitutional practice. Perhaps Magliocca would counter
that even this alternative would have been too unstable to legitimate a new
nation. But this use of history would have relied on practices that had organized
American public debate for decades. So I would still suggest that it is less
the act of appealing to a founding than the character of that appeal that
matters, because the latter is a function of how one contingently imagines the
relationship between history and constitutionalism. As I suggest, the
development of a particular way of appealing to history, even though it can now
seem straightforward, in the context of the 1780s and 1790s proved novel.

In a
similar spirit, Mulligan contends that it is unsurprising that Americans came
to treat the Constitution as a text. While it might not have been “absolutely
necessary,” she writes, “it turns out that it was decidedly convenient.” In the
cauldron of political debate, she notes, there was always a powerful incentive
to leverage the text of the Constitution and, indeed, my own accounts of
congressional debates illustrate how quickly this practice developed. But much
as there are distinct ways of appealing to history in constitutional argument,
so too are there distinct ways of appealing to text. While I don’t doubt that
Americans would surely have emphasized the Constitution’s text, I do not think
that they (and thus we) were destined to imagine constitutional text as they eventually
did. Here it is valuable to consider Americans’ pre-Independence experience
with charter constitutionalism. Americans’ constitutional experience had always
centered on authoritative texts. But in that constitutional world, there were
no discontinuities between the text of the charters and what we might think lay
beyond them. Text mattered yet didn’t. It was not simply that they believed
that the constitution had content beyond its text; they did not care about the
boundary separating the two. This thinking informed state constitution-making,
persisted under the Articles of Confederation, and remained prevalent up
through the Constitutional Convention and beyond. It might have endured
indefinitely had Americans not fundamentally rethought the idea of
constitutional text. By beginning to draw sharp distinctions between the Constitution’s
words and everything else and assuming that constitutional content was made,
not merely recorded, by the linguistic form, they generated a new way of
thinking about the Constitution that made it intuitive, in Mulligan’s words, to
assume that “[t]he document that we call the Constitution is our constitution.”
It can be hard for us to see how it could have turned out differently. We
instinctively draw a line between the text and what is outside of it—even if we
favor the importance of unwritten norms and precedents. But I don’t think there
was anything natural about this in 1776, 1787, or 1789 so there did not have to
be anything natural about it in 1796 or 1803. Founding-era Americans could have
lingered in a constitutional world that assumed that “the constitution” denoted
a seamless field of written and unwritten content.

What
matters then, for my argument, is not simply that Founding-era Americans came
to focus on the Constitution’s text or appeal to its history or talk about it
being fixed, but that they did so in novel ways that created new organizing
dichotomies. Nothing about the Constitution itself required Americans to draw
these new dichotomies—to construct, in LaCroix’s words, that particular
“theoretical undercarriage of the machine.” Only practices that were invented,
legitimized, and then entrenched in the 1790s made that possible.

All too
often we return to the Founding with our own dichotomies in hand, merely
assuming, because our socialization has made them so natural to us, that they
are essential tools for making sense of early constitutional behavior. We then
get to work sorting what is said, seeing if it fits on one side of the
dichotomy or the other in hopes of clarifying what our Constitution originally
meant. But too often we note what Founding-era Americans said without
appreciating that, since it was said in a world free of our dichotomies, the
statement carried a different meaning than we would assume. I have tried to
draw attention to the various ways in which early Founding-era disputants clung
to older ways of thinking about constitutional text, history, and thus fixity
to force us to delineate the origins of our constitutionalism rather than
assume its inevitable emergence. We are often tempted to think that historical
practice was going to converge, one way or another, on our own long-running
practices. But I think it is valuable to grasp their contingency to better
understand their precise logic and the real alternatives that they displaced.

For this
reason, I’m especially pleased that Alison LaCroix underscores what is indeed
conspicuously absent from my story: the Supreme Court. Among the most
unexpected things that happened following 1789 was, first, the capacious
category of constitutionalism was narrowed into what we now call constitutional
law, and, in time, the Supreme Court became the dominant agent in
constitutional development. We often obsess over the origins of judicial review
and ponder whether the Framers anticipated it. Of course they did (at least in
some form). What they didn’t anticipate was the role it would play or the
importance it would obtain in a remade constitutional landscape—one where
constitutionalism described something much narrower than before.

It is
often the job of the historian to take what seems essential and unproblematic
and reveal how it, like everything else, has a history, not least because doing
so is the key to self-understanding. If we cannot defend our constitutional
imagination—and the dichotomies, vocabularies, and practices that define it—by
simply reassuring ourselves that an external authority (in this case the
Constitution) makes us talk, think,
and behave that way, then we will have to justify our habits anew. At minimum,
it ought to force us to see the Constitution’s creation in new, more dynamic
terms, as a process that unfolded over a longer period of time, involved more
actors and episodes, and could have turned out in a variety of ways.

It also seems to hold implications for
originalism, the subject of my final installment.

Jonathan Gienapp is Assistant Professor of History at Stanford University. You can reach him by e-mail at jgienapp at stanford.edu